Lex Ferenda

This week, I’ve been attending the World Computer Law Conference in Edinburgh (hosted by the AHRC Research Centre for Studies in IP and Technology Law). Earlier this week, we had the first GikII workshop (say it geeky; read as a combination of geek and II as in BailII or AustLII or so on….). The workshop was fantastic (there’s a list of papers at the link; my notes are (ironically) mainly handwritten, but I’ll try to make something of them at the weekend) and the conference is still going on.

This morning, we had an interesting session! The first speaker was Michael Geist of the University of Ottawa - familiar to those who follow Internet and copyright legal matters, especially in Canada, and whose blog is frequently cited or linked to from this place. His presentation was fast-paced and visual (slides clicking by every few seconds - how I’d love to present but never quite pulled off!) and covered familiar ground (to me, anyway) on Sam Bulte (the much lamented Canadian MP for Record Companies and North Hollywood), copyright reform, the diversity of Web content, and much more besides. The entirely non-Canadian audience enjoyed it a lot, as did I, despite the familiarity of much of the history. An excellent presentation.

This was followed, double-feature style, by Nic Garnett…

Mr. Garnett is no doubt earning a pretty packet as a consultant; he runs an outfit called Interight (just one R, to be sure!). What do they do? This convergence of law and technology is especially evident in the field of digital content. But although, law and technology are converging, they don’t connect. Interight.com exists to help all the players in the digital content value chain to make that connection.

Speaking of making connections, you might also wish to know that his background is in the development of DRM (digital rights management) technologies and prior to that, working as a leading figure in the IFPI - the International Federation of Phonographic Industries (think of your friendly neighbourhood fan-sueing artist-screwing association of record companies, and multiply…). WIPO says that he “played an important part in assisting with the global development of copyright” and interacted frequently with the Chinese authorities in the development of the Chinese copyright system and the efforts to deal with piracy in China.

Anyway, Nic’s presentation was based around a report he wrote - commissioned by WIPO - entitled Automated Rights Management Systems and Copyright Limitations and Exceptions. Yes folks, that’s a MS Word .doc format. Ah, the irony.

It’s an interesting report, and the presentation was informative. However, I have concerns - which I raised during the Q&A - on the process through which WIPO appoints (through what seemed to be informal processes, according to the speaker) someone who has (acceptable and valid) views, past experiences and economic interests in the DRM/TPM markets. I argued that the very arguments made by Geist in the first show of the morning, that new stakeholders and interests were often excluded from copyright reform (especially in the behind-the-scenes way of doing things), were borne out by his selection as the author of the objective report on rights management technologies.

In the back-and-forth with Mr. Garnett, I acknowledged that there was no suggestion of bias or unfairness in his report. A few moments later, though, I did notice this gem in his report, which I immediately shared with those seated around me, and now also wish to share with the ten of you who read this:

Creative Commons was officially launched in 2001. Lawrence Lessig, the founder and chairman of Creative Commons, started the organization as an additional method of achieving the goals of the case Eldred v. Ashcroft, which was adjudicated by the United States of America Supreme Court. The initial set of Creative Commons licences was published on December 16, 2002.

I’m sure the many people involved in the excellent Creative Commons projects, including Lessig himself, would be most surprised to know that the objective view on CC is that it was founded to achieve the goals of the (unsuccessful, and much narrower) Eldred case (on copyright term limits). Garnett mentioned in his speech that he hadn’t done much research on CC (that much is obvious) but that he had his concerns about it. If this is what WIPO is being told by its experts, why should we be surprised at the pro-established-industries results?

This is not a personal attack. It is, though, an illustration of the ongoing inability of international organisations to deal with anything other than their preconceived notions of who the ‘experts’ are. User rights and alternative models (social, economic, regulatory or whatever) cannot just form a part of open consultations, but must form a realistic part of all processes - including the selection of consultants in smoke-filled rooms (none of that in Scotland, though).

Further commentary from a_cubed, the other Nic and Ian Brown. All of whom have more detail on what was said!

Steer your computer to econsultation.ie for a new development in Ireland; online consultation (mandated by motion in both houses of parliament) on the drafting of a new Broadcasting Act. (It’s not online-only…alternatives are here).

This bill hasn’t been introduced in either house of parliament - so it’s unusual enough that the draft is publicly available. (’Heads’ include full legal text but haven’t been approved by the Cabinet, to the best of my memory). The online tool allows you to see the commentary and full text for each provision, and to give a response or responses, section-by-section.

The bill itself - well I have a lot to say on it. It deals with public broadcasting funding, the defintion of a TV (for TV licence purposes), complaints, licences, sanctions, and more. But not right now. I don’t know if the good people on the relevant Committee are planning to publish responses. I promise to publish mine, anyway. And to ask them whether they will publish what they receive, as is the case in more traditional email-us-your-thoughts consultation processes.

Obligatory nitpicking (from terms):

The material featured on this site is subject to Government copyright according to the Copyright and Related Rights Act, 2000. The material may be downloaded to file or printer for personal use only. Where this material is being issued to others, the source including URL and copyright status must be acknowledged.

So a journalist who downloads it for the purpose of news reporting is breaching the terms? And why is downloading it the problem now, rather than reproduction or exploitation? Surely a download is permissible regardless of purpose, and it’s the subsequent (mis)use that is relevant?

The permission to reproduce Government copyright material does not extend to any material on this site, which may be the property of a third party. Authorisation to reproduce such material must be obtained from the copyright holders concerned.

Weeeellll, how’s about that goodly English? “any material on this site which may be…” is clearly what they mean. Or is it actually the case that all of the material on the site is the property of a third party?

I don’t think it’s ever been (seriously) argued that material on a website is ‘property’ - someone may have intellectual property rights, yes, but they own it? Hello?

And finally, the real howler: “Authorisation to reproduce such material must be obtained from the copyright holders concerned.” What they mean, of course, is “authorisation to reproduce such material in violation of copyright law must be obtained from the copyright holders concerned”. Of course.

A new book available for download (under a Creative Commons licence). Here is the bibilographic information. I’ve just downloaded a couple of chapters relevant my current and forthcoming research, but would be interested in other responses:

Henrike Schmidt, Katy Teubener, Natalja Konradova (eds)
Control + Shift. Public and Private Usages of the Russian Internet
Norderstedt: Books on Demand, 2006.
ISBN 3-8334-4988-8

The Toronto Star reports on the (overdue) launch of an interesting city-wide (well, a-few-blocks-wide for now) municipal WiFi network in Toronto. Toronto Hydro (note to non-Canadians: the supply of electricity is frequently referred to informally as ‘hydro’ in Canada, due to the history of hydroelectric power plants…) is responsible for this - and it’s free (for a trial period); eventually it will compete with other Net access providers.

An interesting bit of trivia is that apparently the local police insisted that even for the free trial, there be a method of authentication/login for users (the eventual solution was a SMS to a mobile phone, hardly the most accessible or equality-proofed solution!). Another example, if one was needed, of the general assumption that ‘mass market’ Internet access (as distinct from deliberately concealed use) lacks anonymity, and that the absence of ISP licensing in much of the West doesn’t mean that it’s a case of China controls, but we set free…

On a related note, Lawrence Lessig argued last month that municipal wifi offers a way out of net-neutrality-type restrictions. For entirely unrelated reasons (of course), US ISPs are lobbying to forbid local governments from building such networks. Amazing.

Update: John Naughton draws attention to a New York Times story on a Californian plan for wide area wireless that includes a free service and a premium (faster, with tech support) paid service.

Here is my recently-written paper on the European Commission’s proposals to amend the Television Without Frontiers directive. I review the proposed amendments, focusing on the regulation of new media, such as Web streaming and on-demand download services. My main argument is that the philosophy of technological neutrality is an inappropriate (theoretical and practical, rather than legal) basis for the formation of regulatory policy.

I’d be interested in any comments or feedback, as this is very much at an early stage. The paper was presented to the UACES European studies conference in Limerick, Ireland last week. However, it’s part of my ongoing doctoral research and may also find its way into print in a revised format in future.

Well, I’ve been working on the first Irish conference on legal education, “Education, Teaching, Learning and Research in the Irish Legal Academy” - a one-day symposium taking place in Trinity College Dublin on Friday 29th September 2006 (how many times have I written that recently?). I’ve been working away on a lot of background things, with my supervisor Eoin O’Dell taking the lead - however the most fun bit has been designing (well, tearing apart a WordPress template) the website and populating it with content. We’ve just opened registration and there’s no charge to attend - so if you’re interested in a day of discussions, workshops and questions about legal education, please stop by the site, check out the programme, and fill in the registration form (which forced me to re-learn how to do even the most basic of Web forms!) to book your place.

So, it’s not that I had a longer holiday than expected! Nor was I captured by rival bloggers as punishment for poor posting habits. No, I came back from my break and swept straight into a number of projects, and also had patchy Web access.

Projects, you say?

Going to put them in separate posts. Just because I can.